The question of the justiciability of the prerogative of prorogation has now been examined, in England, in two recent hearings: in the Divisional Court (before the Lord Chief Justice, the Master of the Rolls, and the President of the Queen’s Bench Division, a powerful team), giving judgment on 11 September 2019, and in the Supreme Court (before eleven justices, also highly distinguished), giving judgment on 24 September 2019. Yet the two courts came to broadly opposite conclusions.
Such disagreement is not uncommon in major constitutional conflicts, since they often occur in legal grey areas. Statutory references to prorogation are few, and do not bear on the current situation. But this conflict of courts is different, for it sets orthodox legal opinion against new, judge-made law. Broadly, two approaches to such issues can be distinguished: the common law tradition, in which judges argued upwards from the clear provisions of pre-existing case or statute law, and the Roman law tradition, in which judges reason downwards from general principles that seem to those judges to be self-evidently true. The Divisional Court favoured strict construction, while the Supreme Court embraced a new and wider conception of its authority.
On this seemingly abstruse point depends the balance between the government, Parliament, and the law courts; and, perhaps, whether the UK leaves the EU in conformity with the result of the referendum of 23 June 2016. It could hardly be more important. The Supreme Court quickly incurred major opprobrium for overstepping the conventional boundaries, for staging a ‘constitutional coup’, and for reinforcing the existing sense of a confrontation between ‘the People’ and ‘the Establishment’. Can an historian discern some of the general points at issue?
They have historical origins. The Supreme Court briefly cited in its support two old cases, the Case of Proclamations (1611) and Entick v. Carrington (1765). Both turned on the question of whether the King (that is, the government) could alter the law by the use of prerogative (32). But neither dealt with the question of whether a senior court could alter the law by introducing novel doctrine, which becomes the point at issue here. Bad history is a dangerous foundation for judge-made law.
The novel doctrine was that the Supreme Court could declare the purpose for which Parliament sat, and so decide whether a prorogation would defeat that function (33). The Court offered as a rationale that a Prime Minister could otherwise manipulate the power of prerogative to achieve his ends, a theoretical possibility that had always been present (but almost never acted out except, it has been alleged, by Sir John Major in 1997) without Parliament ever having found it necessary to provide against it (33). Indeed, the Court implied that the Government ‘could, through the use of the prerogative, prevent Parliament from exercising its legislative authority for as long as it pleased’ (42). If such a totalitarian takeover was so easy, it is to say the least remarkable that Parliament had never legislated to prevent one.
The Supreme Court held that the exercise of a prerogative power to prorogue was ‘unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’ (50). All depended, in this new doctrine, on the Court having a privileged access to what is ‘reasonable’. Whether it was reasonable ‘may in some circumstances involve a range of considerations, including matters of political judgment’ (51). But whether this extension of the remit of the Court to matters of political judgment is acceptable will now be a matter for discussion.
This was novel doctrine since the court also stepped in where Parliament itself had not thought it necessary to act. Parliament, on its own authority (and not by prorogation) adjourned for a summer holiday on 25 July 2019 and did not reassemble until 3 September; this absence did not lead to cries of outrage that Parliament was prevented from doing its job. Now the Supreme Court delivers, as an obiter dictum, the doctrine ‘every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie’ (38). The courts have a ‘particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits’ (39). That claim would give the Supreme Court very extensive powers indeed.
The key term in both the Divisional and Supreme Court hearings was ‘parliamentary sovereignty’. It was relied on by Lord Pannick QC in his submissions on behalf of the Claimant, Gina Miller, and not challenged by the two sets of judges. Lord Pannick and his associates claimed to be defending it. But no-one pointed out that the doctrine was itself an historical formation, dating from the nineteenth century. No-one examined the contention, which has been much discussed, that the old notion of parliamentary sovereignty has been challenged, and perhaps upstaged, by the new practice of the referendum, giving far clearer expression to popular sovereignty. The Supreme Court judgement indeed dismissed the referendum: ‘Technically, the result was not legally binding’ (7). The Court merely announced, without defending, the old principle ‘We live in a representative democracy’ (55).
Even the Supreme Court judgment relied on a nineteenth-century version of constitutional history that no serious historian would now endorse. It quoted only another judge, Lord Browne-Wilkinson, opining that ‘the constitutional history of this country is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body’ (41). This was not true in the seventeenth century and has been too embarrassingly untrue since the UK’s entry into the EU in 1973.
The doctrine of parliamentary sovereignty was evidently insufficiently defined, for in the Divisional Court hearing Lord Pannick sought to extend the principle beyond the supremacy of parliamentary legislation; according to the judges, Pannick contended that ‘It is a much broader legal principle than that. It entails the right of Parliament to make any law it sees fit and is therefore “engaged” by a decision of the Executive to advise the Queen to exercise a prerogative power in order to “prevent or impede” Parliament from sitting and making law as it thinks appropriate’ (25). ‘Lord Pannick develops a submission that there are no areas of prerogative power into which the courts may not inquire’ (27). The Divisional Court rejected this submission (37, 58-67), adding ‘The expanded concept [of parliamentary sovereignty] has been fashioned to invite the judicial arm of the state to exercise hitherto unidentified power over the Executive branch of the state in its dealings with Parliament’ (63). Despite this warning, the Supreme Court then chose to do just that.
Why? One explanation, which has appeared in some newspapers, is that the Supreme Court is packed with Remainers, and that the case was ‘stitched up’ by them. A second is that lawyers, however intelligent, tend to be conventional thinkers, and that they echo the assumptions embodied in the law textbooks with which they were educated, the first editions of which were published many years ago. Lawyers are not always good in recognising the significance of recent constitutional change. A third is that the Supreme Court is happy to promote ‘mission creep’, and that it extends its role and competence in a similar way to the Court of Justice of the European Union. Each explanation gives concern.
Parliamentary sovereignty is indeed a puzzling doctrine. It is not clear that it has ever been defined or enacted in binding form. Indeed, it could not be, any more than people can lift themselves off the floor by pulling on their shoelaces. To be binding, an Act making Parliament sovereign would have to depend on the prior sovereignty of Parliament.
The Supreme Court in its recent judgment emphasised that supremacy. But practice does not bear out such professions. Observers may note that in 2017 (on the question of whether the government could trigger Article 50 of the Treaty of European Union by prerogative, in the case abbreviated as Miller 1) the Supreme Court gave instructions to Parliament on how to conduct its business, and Parliament obeyed. Now the same has happened in the case on the prerogative of prorogation (Miller 2). It seems to follow that the Supreme Court, not Parliament, is now sovereign; the phrase ‘parliamentary sovereignty’ is window dressing.
Even the Supreme Court, however, exercises only a subordinate authority, even if it trumps Parliament. This is confirmed by the conduct of the courts since the UK joined the EU on 1 January 1973. The treaty of accession yielded priority to EU law over UK law, and the courts have obeyed.
Moreover, judicial decisions tend in only one direction. In the case of Wheeler (2008), the Divisional Court refused to grant judicial review to require the holding of a promised referendum on the Lisbon Treaty on the grounds that it was a political matter, and therefore not justiciable. Now the Supreme Court has ruled that a political matter (prorogation) is justiciable, and annulled that prorogation, in the obvious knowledge that its cancellation would facilitate blocking Brexit. The courts, then, have two faces, but from each proceed judgments that have the effect of promoting the subordination of the UK to an emerging superstate.
Conspiracy theories are seldom plausible. Rather than seek conspiracies, historians often do better to trace the emergence of assumptions, shared without discussion for reasons that people think to be high-minded and obviously virtuous, that make conspiracies unnecessary. So it may be here. The steady growth of the practice of judicial review has quietly and without legislative provision expanded the role of the courts, and especially the Supreme Court, in ways that now suddenly attract attention.
If so, the issue of prorogation is the new occasion, but not the longer term cause, of this trend. Leaver commentators object that the Supreme Court has become politicized; Remainer commentators indignantly deny the claim, but in terms that are likely to highlight the charge. Suddenly a spotlight is shone on a tiny group of unelected, unaccountable people; the standard term for authority in the hands of such a group is ‘oligarchy’. Reform is already being called for. Are Supreme Court justices to be elected and dismissable by the people? Are they to be political appointments made by elected politicians? Either would have an unfortunate impact on their calibre, and judges would share in the disesteem into which Parliament has fallen during its conduct of the Brexit issue.
It reminds us that the Supreme Court itself was designed, presumably on the back of an envelope, by no less a constitutional authority than Tony Blair. There must now be a case for reverting to the arrangements that prevailed, to general satisfaction, before that unwise step. At the least, the temptations placed in the way of the justices of a Supreme Court to develop a loftier conception of their role must be considerable.
Students of jurisprudence are familiar with the doctrine that ‘the law is whatever the courts decide’. It seems unlikely that that complacent doctrine will survive in the new age of referendums. It is hardly desirable that it should. Far from deciding the issue, the judgment of the Supreme Court seems likely to be celebrated by Remainers and vilified by Leavers. In the current political divisions, the judiciary are likely to be diminished.